Citation Nr: 0012397
Decision Date: 05/10/00 Archive Date: 05/18/00
DOCKET NO. 99-02 865 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for post traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
ATTORNEY FOR THE BOARD
C. Allen, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1968 to May 1971.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 1998 rating decision of the
Department of Veterans Affairs (VA), Regional Office (RO), in
Montgomery, Alabama, which denied a claim by the veteran
seeking entitlement to service connection for PTSD.
FINDING OF FACT
There is evidence of a current medical diagnosis of PTSD,
reported inservice stressors alleged to have caused the PTSD,
and medical evidence which generally relates the current
diagnosis of PTSD to inservice events.
CONCLUSION OF LAW
The claim of entitlement to service connection for PTSD is
well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Law & Regulations
The law provides that "a person who submits a claim for
benefits under a law administered by the Secretary shall have
the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded." 38 U.S.C.A. § 5107(a) (West 1991). Once a
claimant has submitted evidence sufficient to justify a
belief by a fair and impartial individual that a claim is
well grounded, the claimant's initial burden has been met,
and VA is obligated under 38 U.S.C. § 5107(a) to assist the
claimant in developing the facts pertinent to the claim. In
Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied
sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United
States Court of Appeals for the Federal Circuit held that,
under 38 U.S.C. § 5107(a), VA has a duty to assist only those
claimants who have established well grounded (i.e.,
plausible) claims. More recently, the U. S. Court of Appeals
for Veterans Claims (Court) issued a decision holding that VA
cannot assist a claimant in developing a claim which is not
well grounded. Morton v. West, 12 Vet. App. 477 (July 14,
1999), req. for en banc consideration by a judge denied, No.
96-1517 (U.S. Vet. App. July 28, 1999) (per curiam).
Generally, a well-grounded claim is "a plausible claim, one
which is meritorious on its own or capable of
substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81
(1990). A claim for entitlement to service connection is
well grounded when there is (1) a medical diagnosis of a
current disability; (2) medical, or in certain circumstances,
lay evidence of inservice occurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus
between an inservice injury or disease and the current
disability. Epps, 126 F.3d at 1468; Caluza, 7 Vet. App. 498,
506 (1995) (citations omitted), aff'd 78 F.3d 604 (Fed.
Cir. 1996). Where the determinative issue involves medical
causation or etiology, or a medical diagnosis, competent
medical evidence to the effect that the claim is
"plausible" or "possible" is required. Epps, 126 F.3d at
1468. In determining whether a claim is well grounded, the
supporting evidence is presumed to be true. King v. Brown,
5 Vet. App. 19, 21 (1993).
A claim for service connection for PTSD is well grounded when
the veteran has submitted: (1) medical evidence of a current
diagnosis of PTSD; (2) lay evidence (presumed credible for
these purposes) of an inservice stressor(s); and (3) medical
evidence of a nexus between service and the current PTSD
disability. Gaines v. West, 11 Vet. App. 353, 357 (1998)
(citing Cohen v. Brown, 10 Vet. App. 128, 136-37 (1997));
see also Caluza, 7 Vet. App. at 506; 38 C.F.R. § 3.304(f)
(1999).
For service connection for PTSD to be awarded, three elements
must be present according to VA regulations: (1) medical
evidence diagnosing the condition in accordance with
38 C.F.R. § 4.125(a) (DSM-IV criteria for diagnosis); (2)
credible supporting evidence that the claimed inservice
stressor actually occurred; and (3) a link, established by
medical evidence, between the current symptoms and the
claimed inservice stressor. 38 C.F.R. § 3.304(f) (1999) (as
amended, 64 Fed. Reg. 32808, June 18, 1999); Moreau v. Brown,
9 Vet. App. 389 (1996). As amended, section 3.304(f)
provides that if the evidence establishes that the veteran
engaged in combat with the enemy and the claimed stressor is
related to that combat, in the absence of clear and
convincing evidence to the contrary, and provided that the
claimed stressor is consistent with the circumstances,
conditions, or hardships of the veteran's service, the
veteran's lay testimony alone may establish the occurrence of
the claimed in-service stressor. See also 38 U.S.C.A.
§ 1154(b) (West 1991).
The Board notes at the outset of this decision that, when the
RO rendered its rating decision on this claim, it did not
initially determine whether the veteran had met his burden of
submitting a well-grounded claim, the establishment of which
is necessary to trigger VA's statutory duty to assist the
veteran in developing facts pertinent to his claim. 38
U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.
App. 78, 81 (1990); Tirpak v. Derwinski, 2 Vet. App. 609, 610
(1992); Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993).
Instead, the RO assisted the veteran in developing facts
pertinent to his claim, including scheduling a VA
examination. See Grivois v. Brown, 6 Vet. App. 136, 139-40
(1994). Therefore, the Board will consider all the evidence
of record, including that resulting from VA assistance, in
determining whether the veteran's claim is well grounded in
this case.
II. Analysis
In this case, the Board concludes that the veteran's claim
for service connection for PTSD is well grounded.
First, the Board finds that the claims file contains
competent evidence of a current diagnosis of PTSD. This is
shown by a December 1997 VA examination report, which
diagnosed the veteran with chronic, severe PTSD, as well as
by VA PTSD outpatient clinic notes from March to May 1997.
The Board also finds lay evidence of inservice stressors. In
a June 1996 statement, VA Form 21-4138, the veteran alleged
that he witnessed many soldiers get seriously wounded or
killed in Vietnam, at least one of which was a friend. He
also indicated that he was subjected to mortar attacks and
sniper fire. These alleged stressors are mentioned in the
December 1997 VA examination report.
Finally, the claims file contains medical evidence linking
the current PTSD diagnosis to service, namely to the alleged
stressors. The December 1997 VA examination report's PTSD
diagnosis was based on the above stressors reported by the
veteran. Gaines v. West, 11 Vet. App. at 357; see also
Caluza v. Brown, 7 Vet. App. at 506; 38 C.F.R. § 3.304(f)
(1999).
ORDER
The claim of entitlement to service connection for PTSD is
well grounded, and to this extent only, the appeal is
granted.
REMAND
Because the claim of entitlement to service connection for
PTSD is well grounded, VA has a duty to assist the veteran in
developing facts pertinent to the claim. 38 U.S.C. A.
§ 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v.
Derwinski, 1 Vet. App. 78 (1990). Here, the Board finds that
further evidentiary development is needed prior to appellate
review.
In this case, the record contains no express determination by
the RO as to whether or not the veteran engaged in combat
with the enemy during service. Where VA determines from the
evidence that the veteran did not engage in combat with the
enemy or where the veteran, even if he did engage in combat,
is claiming stressors not related to combat, his lay
testimony alone is not enough to establish that the stressors
actually occurred. Rather, his testimony must be
corroborated by "credible supporting evidence" and must not
be contradicted by service records. 38 C.F.R. § 3.304(f)
(1999); Zarycki, 6 Vet. App. at 98. Credible supporting
evidence of combat may be obtained from many sources,
including, but not limited to, service records. There is
"an almost unlimited field of potential evidence to be used
to 'support' a determination of combat status." Gaines, 11
Vet. App. at 359. However, credible supporting evidence of
the actual occurrence of an inservice stressor cannot consist
solely of after-the-fact medical nexus evidence. Moreau v.
Brown, 9 Vet. App. 389 (1996).
Although the RO submitted a request to the U. S. Armed
Services Center for Research of Unit Records (USASCRUR)
(formerly U. S. Army & Joint Services Environmental Support
Group (ESG)) to attempt to verify the veteran's alleged
stressors, it indicated that his unit of assignment was "Co.
A 2d Bn 52d Inf 1st Armd Div." However, that was not the
veteran's unit while he was in Vietnam. The veteran served
in Vietnam from October 1968 to August 1969 and was a member
of the "Company B, 9th Aviation Battalion, 9th Infantry
Division." While the USASCRUR returned operational reports
from the 9th Infantry Division, a specific search for
information on Company B of the 9th Aviation Battalion was
not accomplished and only the operational reports from
November 1968 through April 1969 are of record. Moreover,
the USASCRUR cover letter specifically indicates that more
information concerning an "Andrew Bryant," a fellow
serviceperson whom the veteran indicated was killed, was
needed. It also states that Morning Reports (MRs) may verify
certain wounded or killed service personnel; however, no MRs
were requested by the RO.
The Board finds also that further development of the record
is needed because the medical evidence is not clear as to the
current nature of the veteran's psychiatric condition. The
December 1997 VA examination report diagnosed PTSD, but a
prior VA examination report, dated in August 1996, diagnosed
schizophrenia. Both VA reports indicate that the veteran's
claims folder was not available, nor reviewed, prior to the
examinations. In light of the above, both reports are
inadequate. The Court has held that the "fulfillment of the
statutory duty to assist . . . includes the conduct of a
thorough and contemporaneous medical examination . . . so
that the evaluation of the claimed disability will be a fully
informed one." Green v. Derwinski, 1 Vet. App. 121, 124
(1991); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (citing
Suttman v. Brown, 5 Vet. App. 127, 138 (1993) (duty to assist
includes providing the veteran a thorough and contemporaneous
medical examination when needed)). When the medical evidence
is inadequate, VA must supplement the record by seeking a
medical opinion or by scheduling a VA examination. Colvin v.
Derwinski, 1 Vet. App. 171 (1991). Therefore, another VA
examination is necessary.
In addition, the Board notes that 38 C.F.R. § 3.304(f) was
amended during the pendency of this appeal. The new version
of the regulation is effective from March 7, 1997, see 64
Fed. Reg. 32807 (June 18, 1999), and hence, as this claim was
still pending on that date, the revised version must be
considered. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991)
(where the law or regulation changes after a claim has been
filed, but before the administrative or judicial appeal
process has been conducted, the version of the law or
regulation most favorable to the veteran shall be applied).
Finally, the Board notes that precedent holdings of the Court
issued during the pendency of this appeal provide new
guidance for the adjudication of claims for service
connection for PTSD. See e.g. Suozzi v. Brown, 10 Vet. App.
307 (1997); Cohen v. Brown, 10 Vet. App. 128 (1997) and
Moreau v. Brown, 9 Vet. App. 389 (1996). Although many of
the details of the veteran's alleged stressor experiences are
not verified, it should be noted that in Suozzi, the Court
expressly held that a veteran need not prove "every detail"
of an alleged stressor. Id. at 311.
Finally, the Board finds that additional development of the
evidentiary record is in order because VA is on notice of the
existence of government records which may be relevant to the
issue under consideration. See Bell v. Derwinski, 2 Vet.
App. 611 (1992) (per curiam). On his VA examination in
August 1996, it was noted that the veteran was receiving
disability benefits from the Social Security Administration
(SSA). Decisions of the Board must be based on all of the
evidence that is known to be available. 38 U.S.C.A.
§§ 5103(a), 7104(a) (West 1991 & Supp. 1999). The duty to
assist is particularly applicable to records which are known
to be in the possession of the Federal Government, such as
SSA records. See Counts v. Brown, 6 Vet. App. 473 (1994).
Accordingly, this case is REMANDED to the RO for the
following development:
1. The RO should contact the SSA for the
purpose of obtaining any records from
that agency which pertain to a claim
filed by the veteran for disability
benefits. The RO should obtain copies of
award letters/notices,
administrative/appellate decisions,
hearing transcripts, if applicable, and
all medical records relied upon
concerning claims/appeals filed by the
veteran for SSA benefits. The RO should
proceed with all reasonable follow-up
referrals that may be indicated by the
inquiry. All attempts to obtain records
which are ultimately unsuccessful should
be documented in the claims folder.
2. The RO should contact the veteran and
provide him with the opportunity to
clarify all of his inservice stressors.
Specific names, dates, places, and unit
assignments are needed for any fellow
servicepersons whom the veteran reports
witnessing being injured or killed.
Dates and places of any mortar attacks
and sniper fire should also be provided
to the best of the veteran's ability.
Copies of all correspondences made and
information obtained should be added to
the claims folder.
3. Thereafter, the RO should make an
initial determination as to whether or
not the veteran engaged in combat with
the enemy during service, as per
38 U.S.C.A. § 1154(b), 38 C.F.R.
§ 3.304(f), and the relevant case law.
The version of 38 C.F.R. § 3.304(f), most
favorable to the veteran should be
employed. Karnas, supra. If the RO
determines that the veteran did not
engage in combat with the enemy during
service, it should attempt to verify the
veteran's alleged stressors, namely (1)
witnessing fellow soldiers, and at least
one friend, injured or killed; and, (2)
being subjected to mortar attacks and
sniper fire. It should do so by
contacting the USASCRUR, 7798 Cissna
Road, Springfield, VA 22150, and
requesting any and all pertinent
information in regard to the veteran's
alleged stressors during active duty in
Vietnam with the United States Army,
Company B, 9th Aviation Battalion, 9th
Infantry Division, from October 1968 to
August 1969. Morning Reports should also
be obtained, if necessary for
verification.
4. Regardless of the veteran's response,
the RO should review the file and prepare
a summary of all the claimed stressors.
This summary, the service personnel
records, and all associated documents
should be sent to USASCRUR, 7798 Cissna
Road, Springfield, Virginia, 22150. See
VA MANUAL M21-1, Part VI, Paragraph 7.46
(1992). USASCRUR should be requested to
provide any information which might
corroborate the veteran's alleged
stressors.
5. After the development requested is
completed, the RO should schedule the
veteran for a comprehensive VA
psychiatric examination to determine the
diagnoses of all psychiatric disorders
that are present. This examination, if
feasible, should be conducted by a
psychiatrist who has not previously
examined, evaluated or treated the
veteran. The claims folder and a copy of
this remand must be provided to the
examiner prior to the examination. The
examiner should determine the true
diagnoses of any currently manifested
psychiatric disorder(s). The
diagnosis(es) must be based on
examination findings, all available
medical records, complete review of
comprehensive testing for PTSD, and any
special testing deemed appropriate. A
multiaxial evaluation based on the
current DSM-IV diagnostic criteria is
required. If a diagnosis of PTSD is
deemed appropriate, the examiner should
specify (1) whether each alleged stressor
found to be established by the record was
sufficient to produce PTSD; and (2)
whether there is a link between the
current symptomatology and one or more of
the in-service stressors found to be
established by the record and found
sufficient to produce PTSD by the
examiner.
In addition, the examiner must comment on
the approximate date of onset and
etiology of any diagnosed psychiatric
disorder as shown by the evidence of
record, and in so doing, the examiner
should attempt to reconcile the multiple
psychiatric diagnoses and/or assessments
of record based on his/her review of all
of the evidence of record, particularly
with respect to prior diagnoses of PTSD.
A complete rationale for all opinions
expressed must be provided. The copy of
the examination report and all completed
test reports should thereafter be
associated with the claims folder.
6. Upon completion of the above, the RO
should readjudicate the claim of
entitlement to service connection for
PTSD. As noted, the readjudication of
this claim must be in accord with the
revised version of 38 C.F.R. § 3.304(f),
as amended effective from March 1997.
The RO should also carefully consider the
benefit of the doubt rule within the
analytical framework provided by
applicable caselaw for PTSD claims, such
as in the Suozzi, Cohen and Moreau
decisions. In this regard, if the
evidence is not in equipoise the RO
should explain why. See Cartwright v.
Derwinski, 2 Vet. App. 24, 26 (1991). If
any benefit sought on appeal, for which a
notice of disagreement has been filed,
remains denied, the veteran and his
representative should be furnished a
supplemental statement of the case and
provided the opportunity to respond
thereto.
Thereafter, and if appropriate, the case should be returned
to the Board after compliance with all requisite appellate
procedures.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
CHRISTOPHER P. KISSEL
Acting Member, Board of Veterans' Appeals